Noble v. Kelly

• Decision Date: 25 September 2000
• Docket Number: Docket No. 00-2154
• Citation: 246 F.3d 93
• Parties: (2nd Cir. 2001) CASIM NOBLE, Petitioner-Appellee, v. WALTER R. KELLY, Superintendent, Respondent-Appellant. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 93

246 F.3d 93 (2nd Cir. 2001)

CASIM NOBLE, Petitioner-Appellee, v. WALTER R. KELLY, Superintendent, Respondent-Appellant.

Docket No. 00-2154

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: Sept. 25, 2000

Decided: April 05, 2001

[Copyrighted Material Omitted]

PHILIP L. WEINSTEIN, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Petitioner-Appellee.

BONNIE M. MITZNER, Assistant District Attorney, Sullivan County, NY (Stephen F. Lungen, District Attorney, and Karen Mannino, Assistant District Attorney, on the brief), for Respondent-Appellant.

Before: CARDAMONE, JACOBS, and SACK, Circuit Judges.

PER CURIAM:

Casim Noble's petition for a writ of habeas corpus challenges his conviction for attempted murder and related offenses on the ground that his Sixth Amendment Compulsory Process rights were violated when the state trial court ruled that alibi testimony would be excluded because defense counsel failed to comply with a state procedural rule requiring advance notice of intent to call alibi witnesses. Alternatively, Noble argues that his counsel's non-compliance rendered his counsel's services constitutionally ineffective. The United States District Court for the Southern District of New York (Sand, J.) granted Noble's petition for a writ of habeas corpus and directed the Respondent either to release Noble or to retry him. See Noble v. Kelly, 89 F. Supp. 2d 443, 464 (S.D.N.Y. 2000).

We affirm the judgment of the district court.

BACKGROUND

Familiarity with the facts of the case and the details of Noble's state criminal trial as set forth in Noble, 89 F. Supp. 2d at 445-50, is assumed. Noble was convicted in the Supreme Court of the State of New York, Sullivan County, for attempted murder and various related offenses. Noble's petition for habeas relief challenges the exclusion of testimony that Noble was inside a bar at the time the victim was shot in a car outside.

New York Criminal Procedure Law treats an alibi witness as a special type. Section 250.20 provides that the government may serve upon the defense, up to twenty days after arraignment, a demand that the defense identify any witness who intends to testify that "at the time of the commission of the crime charged [the defendant] was at some place or places other than the scene of the crime." N.Y. Crim. Proc. L. § 250.20. The defense has eight days to respond, is under a continuing duty to respond as circumstances and intentions change throughout the trial process, and risks the sanction of exclusion for failure to comply: "If at the trial the defendant calls such an alibi witness without having served the demanded notice... the court may exclude any testimony of such witness relating to the alibi defense." Id. The court retains discretion to accept the testimony, but if it does, it must grant the government time to prepare a rebuttal. See N.Y. Crim. Proc. L. § 250.20 ("The court may in its discretion receive such testimony, but before doing so, it must, upon application of the people, grant an adjournment not in excess of three days.").

The prosecution appropriately served an alibi witness request upon Noble's counsel, to which counsel responded that no alibi witnesses were anticipated. At trial and in the habeas proceedings, the prosecution and Noble have disputed whether Steven Yamagata should have been identified as an alibi witness in response to the prosecution's § 250.20 demand. According to the prosecution's evidence at trial, the victim was sitting in a car parked outside the "Around the Corner Bar," and was shot at close range by one of three assailants. The victim and other witnesses identified Noble as the gunman. Following the testimony of the first defense witness, a colloquy ensued in which the prosecution challenged counsel's intention to call Yamagata as a witness, and the court asked what Yamagata would say. Noble's counsel responded that Yamagata "was inside the bar when he heard the shots, and he was playing pool or some other game in there, and Casim [Noble] was playing [a] video game, and they both exited the bar together."

The trial judge asked defense counsel to explain why Yamagata was not an alibi witness whose testimony should have been noticed in advance pursuant to § 250.20. Defense counsel responded that Yamagata was not an alibi witness because the scene of the crime specified in the indictment was the vicinity of the Around the Corner Bar, and that Yamagata's testimony--that Noble was in the bar--would place him at the scene rather than furnish the alibi that he was elsewhere. After taking the matter under advisement, the court adopted the competing view that, in light of the prosecution's pre-trial discovery responses, the scene of the crime for the purpose of alibi analysis, was "in front of the [Around the Corner B]ar." As a sanction for defense counsel's failure to give notice under §250.20, the court excluded Yamagata's testimony.

The jury convicted Noble of attempted murder in the second degree, two counts of criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree. He was sentenced chiefly to two terms of 12" to 25 years of imprisonment and one term of 7" to 15 years of imprisonment, all to run concurrently. On Noble's appeal, the Appellate Division of the New York Supreme Court did not decide whether the preclusion of the alibi testimony was constitutional error, because it held that even if it were, any error introduced thereby was harmless. See People v. Noble, 209 A.D.2d 735, 736, 618 N.Y.S.2d 123, 124 (3d Dep't 1994). The court rejected Noble's claim that his counsel was ineffective on the ground that Noble only alleged a "simple disagreement with trial strategies and tactics," and was therefore not sufficient to overturn the convictions. Id. Noble's application for leave to appeal to the New York Court of Appeals was summarily denied. See People v. Noble, 84 N.Y.2d 1036, 647 N.E.2d 464, 623 N.Y.S.2d 192 (1995).

Noble petitioned for a writ of habeas corpus in 1997. The district court granted the writ on the ground that the trial court's preclusion of Yamagata's testimony violated Noble's compulsory process rights under the Sixth Amendment. See Noble, 89 F. Supp. 2d at 454-61. Alternatively, the court held that defense counsel's failure to follow the procedures for calling an alibi witness amounted to constitutionally ineffective counsel. See id. at 461-63. We affirm on the first ground and therefore do not reach the second.

DISCUSSION

I. Timeliness

Title I of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, §101, 110 Stat. 1214, 1217 (codified at 28 U.S.C. § 2244), imposes a time limit for filing habeas petitions. See 28 U.S.C.§2244(d)(1). AEDPA was enacted on April 24, 1996; prisoners whose convictions became final before that date had one year--until April 24, 1997--to file. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Noble's conviction became final January 30, 1995, when leave to appeal to the New York Court of Appeals was denied. The district court received his petition on July 22, 1997, after the deadline; but Noble contends that before the time expired he had placed the petition in the hands of the prison authorities for mailing.

The Supreme Court held in Houston v. Lack, 487 U.S. 266 (1988), that a prisoner appearing pro se satisfies the time limit for filing a notice of appeal if he delivers the notice to prison officials within the time specified. This "prison mailbox" rule is justified by the litigant's dependence on the prison mail system and lack of counsel to assure timely filing with the court. See id. at 270-71, 274.

As the district court correctly concluded, this rationale applies with equal force to Noble's circumstances. See Noble, 89 F. Supp. 2d at 450-53. Noble's petition for a writ of habeas corpus was made from jail without the benefit of counsel. As the district court noted, the prison mailbox rule has been extended to a variety of circumstances, including administrative filings, see Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per curiam), service of discovery responses, see Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir. 1993), motions for reconsideration under Fed. R. Civ. P. 59, see Smith v. Evans, 853 F.2d 155, 161 (3d Cir. 1988), and motions for a new trial under Fed. R. Crim. P. 33, see Marinez v. United States, No. 89 Cr. 701, 1996 WL 51201, at *2 (S.D.N.Y. Feb. 8, 1996). A number of other circuits have extended the rule to pro se petitions for habeas relief. See Miles v. Prunty, 187 F.3d 1104, 1106-07 & n.2 (9th Cir. 1999); Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999) (en banc); Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999); Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam). Moreover, this Court has observed that "[w]hen a prisoner is proceeding pro se... federal courts generally consider his or her petition for habeas corpus to have been filed as of the date it was given to prison officials for forwarding to the court clerk." Adeline v. Stinson, 206 F.3d 249, 251 n.1 (2d Cir. 2000) (per curiam); cf. Nelson v. Walker, 121 F.3d 828, 832 n.2 (2d Cir. 1997) (holding that the date of delivery to prison officials is the relevant date for purposes of determining whether a notice of appeal was filed before the enactment of AEDPA).

We conclude that the district court properly extended the prison mailbox rule to petitions for writs of habeas corpus.

II. Preclusion

A. Standard of Review

Under AEDPA, the federal courts lack power to grant a writ under 28 U.S.C. § 2254 unless the state court ruling on the federal constitutional issue is either "contrary to... clearly established Federal law" or "involved an unreasonable...